(a) The term ‘Purchaser’ shall mean the President of India or his successors or assigns.
(b) The term ‘Contractor’ shall mean person, firm or company with whom or with which the Order for the supply of stores is placed and shall be deemed to include the Contractor’s Successors, representatives, heirs executors and administrators unless excluded by the contract.
(c) The term ‘Stores’ shall mean what Contractor agrees to supply under the contract as specified in the Purchase Order including the erection of plants and machinery and subsequent testing, should such a condition be included in the Purchase Order.
(d) The term ‘Purchase Order’ shall mean the communication signed on behalf of the Purchaser by an Officer duly authorized intimating the acceptance on behalf of the purchaser on the terms and conditions mentioned or referred to in the said communication accepting the Tender or offer of the Contractor for supply of stores or plant, machinery or equipment or part thereof.
Tenders offering firm prices will be preferred. Where a price variation clause is insisted upon by a tenderer, quotations with a reasonable ceiling should be submitted. Such offers should invariably be supported by the base price taken into account at the time of tendering and also the formula for any such variations.
3. Security Deposit:
On acceptance of tender the contractor shall at the option of the Purchaser and within the period specified by him deposit with him in cash or in any other form as the Purchaser may determine security deposit not exceeding ten percent of the value of the contract as the Purchaser shall specify. If the Contractor is called upon by the Purchaser to deposit ‘Security’ and the Contractor fails to provide the security within the period specified, such failure shall constitute a breach of the contract and the Purchaser shall be entitled to make other arrangements for the re-purchase of the stores contracted for at the risk of the contractor in terms of Sub-Clause (ii) and (iii) of Clause 10(b) here of and/or to recover from the Contractor damages arising from such cancellation.
4. Guarantee & Replacement:
(a) The Contractor shall guarantee that the stores supplied shall comply fully with the specifications laid down for material, workmanship and performance.
(b) For a period of twelve months after the acceptance of the stores, if any defects are discovered there in or any defects therein found to have developed under propose use arising from faulty stores design or workmanship Contractor shall remedy such defects at his own cost provided he is called upon to do so within a period of 14 months from the date of acceptance thereof by the Purchaser who shall state in writing in what respect the stores or any part thereof faulty.
(c) If in the opinion of the Purchaser it becomes necessary to replace or renew any defective stores such replacement of renewal shall be made by the Contractor free of all costs to the Purchaser provided the notice informing the Contractor of the defect is given by the Purchaser in this regard within the said period of 14 months from the date of acceptance thereof.
(d) Should the Contractor fail to rectify the debtors the Purchaser shall have the right to reject or repair or replace at the cost of the Contractor the whole or any portion of the defective stores.
(e)The decision of the Purchaser, notwithstanding any prior approval or acceptance or inspection thereof on behalf of the Purchaser as to whether or not, the stores supplied by the Contractor or defective or any defect has developed within the said period of 12 months or as to whether the nature of the defects requires renew or replacement shall be final, conclusive and binding on the Contractor.
(f) To fulfill guarantee conditions outlined in Clause 4(a) to (e) above the Contractor shall at the option of the Purchaser, furnish a Bank Guarantee (as prescribed by the Purchaser) from a Bank approved by the Purchaser for an amount equivalent to 10% of the value of the contract along with first shipment documents. On the performance and completion of the Contract in all respects the Bank Guarantee will be returned to the Contractor without any interest.
(g)All the replacement stores shall also be guaranteed for a period of 12 months from the date of arrival of stores at Purchaser’s site.
(h)Even while the 12 months guarantee applies to all stores in case where a greater period is called forth by our specifications then such a specification shall apply in such cases the period of 14 months referred to in para 4(b) & (c) shall be asked for guarantee period plus two months.
5. Packing, Forwarding & Insurance:
The Contractor will be held responsible for the stores being sufficiently and properly packed for transport by rail, road, sea or air, to withstand transit hazards and ensure safe arrival at the destination. The packing and marking of packages shall be done by and at the expense of the Contractor. The Purchaser will not pay separately for transit insurance all risks in transit being exclusively of the Contractor and the Purchaser shall pay only for such stores as are actually received in good condition, in accordance with the contract.
The Contractor is responsible for obtaining a clear receipt from the Transport Authorities specifying the goods dispatched. The consignment should be dispatched with clear Railway Receipt / Lorry Receipt. If sent in any other mode it is at the risk of the Contractor. Purchaser will take no responsibility for short deliveries or wrong supply of goods when the same are booked on said to contain basis Purchaser shall pay for only such stores as are actually received by them in accordance with the contract.
7. Test Certificate:
Wherever required test certificates should be sent along with the dispatch documents.
8. Acceptance of Stores:
(a) The stores shall be tendered by the Contractor for inspection at such places as may be specified by the Purchaser at the Contractor’s own risk, expenses and cost.
(b) It is expressly agreed that the acceptance of the Stores contracted for is subject to final approval by the Purchaser, whose decision shall be final.
(c) If, in the opinion of the Purchaser all or any of the stores that do not meet the performance or quality requirements specified in the Purchase Order, they may be either rejected or accepted at a price to be fixed by the Purchaser and his decision as to rejecting and the prices to be fixed shall be final and binding on the Contractor.
(d) If the whole or any part of the stores supplied are rejected in accordance with Clause No.8 (c) above, the purchaser shall be at liberty, with or without notice to the Contractor, to Purchase in the open market at the expense of the Contractor, stores meeting the necessary performance and quality contracted for in place of those rejected, provided that either the purchase, or the agreement to purchase, from another supplier is made within six months from the date of rejection of the stores as aforesaid.
9. Rejected stores:
Rejected stores will remain at destination at the Contractor’s risk and responsibility. If instructions for their disposal are not received from the Contractor within a period of 14 days from the date of receipt of the advice of rejection, the Purchaser or his representative has, at his discretion the right to scrap or sell or consign the rejected stores to Contractor’s address at the Contractor’s entire risk and expense, freight being payable by the Contractor at actuals.
(a) The time for and the date of delivery of the stores stipulated in the Purchase Order shall be deemed to be the essence of the contract and delivery must be completed on or before the specified dates.
(b) Should the Contractor fail to deliver the stores or any consignment there of within the period prescribed for such delivery, the purchaser shall be entitled at his option either;
(i) to recover from the Contractor as agreed liquidated damages and not by way of penalty, a sum of 2% of the price of any stores which the Contractor has failed to deliver as aforesaid for each month or part of a month, during which the delivery of such stores may be in arrears, or
(ii) to purchase elsewhere, without notice to the Contractor on the account and at the risk of the Contractor, the stores not delivered or others of a similar description (where others exactly complying with the particulars are not in the opinion of the purchaser readily procurable, such opinion being final) without canceling the contract in respect of the consignment(s) not yet due for delivery or
(iii) to cancel the contract or a portion thereof and if so desired, to purchase or authorize the purchase of stores not so delivered or others of similar description (where others exactly complying with the particulars are not, in the opinion of the purchaser readily procurable such opinion being final) at the risk and cost of the Contractor.
In the event of action being taken under sub-clause (ii) & (iii) of clause 10 above the Contractor shall be liable for any loss which the Purchaser may sustain on that account, provided that the re-purchase or if there is an agreement to re-purchase then such agreement is made within six months from the date of such failure. But the Contractor shall not be entitled to any gain on such repurchase made against default. The manner and method of such repurchase shall be at the discretion of the Purchaser, whose decision shall be final. It shall not be necessary for the Purchaser to serve a notice of such repurchase on the defaulting contractor. This right shall be without prejudice to the right of the Purchaser to recover damages for breach of contract by the Contractor.
11. Extension time:
As soon as it is apparent that contact dated cannot be adhered to an application shall be sent by the Contractor to the purchaser if failure on the part of the Contractor to deliver the stores in proper time shall have arisen from any clause which the purchaser may admit as reasonable ground for an extension of the time (and his decision shall be final) he may allow such additional time as he considers it to be justified by circumstances of the case without prejudice to the Purchasers rights to recover liquidated damages under clause 10 hereof.
12. Erection of Plant & Machinery:
Wherever erection of a plant or machinery is the responsibility of the Contractor as per the terms of the Contract and in case the Contractor fails to carry out the erection as and when called upon to do so within the period specified by the Purchaser, the Purchaser shall have the right to get the erection done through any source of his choice. In such an even the contractor shall be liable to bear any additional expenditure that the Purchaser is liable to incur towards erection. The Contractor shall, however not be entitled to any gain due to such an action by the Purchaser.
Contractors bill will be passed for payment only after the stores have been received inspected and accepted by the Purchaser. Normally payment will be made for the accepted stores within 30 days from the date of receipt of the materials.
14. Recovers of sums due:
Whenever any claim for the payment of whether liquidated or not, moneys arises out of or under this contract against the Contractor, the Purchaser shall be entitled to recover such sum by appropriating in part or whole, the security deposited by the Contractor, if a security is taken against the Contract. In the event of the security being insufficient or if no security has been taken from the contractor, then the balance or the total sum recoverable, as the case may be shall be deducted from any sum then due or which at any time thereafter may become due to the Contractor under this or any other contract with the Purchaser. Should this sum be not sufficient to cover the full amount recoverable, the Contractor shall pay to the Purchaser on demand the remaining balance due. Similarly, if the Purchaser has or makes any claim whether liquidated or not, against the Contractor under any other contract with the Purchaser, the payment of all moneys payable under the contract to the Contractor including the security deposit shall be withheld till such claims of the Purchaser are finally adjudicated upon and paid by the Contractor.
The Contractor shall warrant and be deemed to have warranted that all stores supplied against this contract are free and clean of infringement of any patent copy right or trade mark and shall at all times indemnify the Purchaser against all claims which may be made in respect of the stores for infringement of any right protected by Patent, Registration of design or Trade Mark and shall take all risk of accidents of damage which may cause a failure of the supply from whatever cause arising and the entire responsibility for the sufficiency of all the means used by him for the fulfillment of the contract.
In the event of any question dispute or difference arising under these conditions or any conditions contained in the Purchase Order or in connection with this contract (except as to any matters the decision of which is specially provided for by these conditions) the same shall be referred to the sole arbitration of the Head of the Purchase Office or of some other person appointed by him. It will be not objection that the arbitrator is a Government Servant that he had to deal with matter to which the contract relates or that in the course of his duties as a Government Servant he has expressed views on all or any of the matters in dispute or difference. The award of the arbitrator shall be final and binding on the parties of this contract, it is a term of this contract.
a) If the arbitrator be the Head of the Purchase Office
i) in the event of his being transferred or vacating his office by resignation or otherwise, it shall be lawful for his successor-in-office either to proceed with the reference himself, or to appoint another person as arbitrator or
ii) in the event of his being unwilling or unable to act for any reason, it shall be lawful for the Head of the Purchase Office to appoint another person as arbitrator or
b) If the arbitrator be a person appointed by the Head of the Purchase Officer in the event of his dying neglecting or refusing to act, or resigning or being unable to act for any reason it shall be lawful for the Head of the Purchase Office either to proceed with the reference himself or to appoint another person as arbitrator in place of the outgoing arbitrator. Subject as aforesaid, the Arbitration & Conciliation Act 1996 and the rules thereunder and any statutory modification there of for the time being in force shall be deemed to apply to the Arbitration proceedings under this Clause. The Arbitrator shall have the power to extend with the consent of the Purchaser and Contractor the time of making and publishing the award. The venue of arbitration shall be the place as the Purchaser in his absolute discretion may determine. Work under the Contract shall, if reasonably possible, continue during Arbitration, Proceedings.
17. Counter Terms and Conditions of Suppliers:
Where counter terms and conditions / printed or cyclostyled conditions have been offered by the supplier the same shall not be deemed to have been accepted by the Purchaser, unless specific written acceptance thereof is obtained.
18. Security for Purchaser’s Materials:
Successful tenderer will have to furnish in the form of a Bank Guarantee or in any other form as called for by the Purchaser towards adequate security for the materials/property provided by the Purchaser for the due execution of the contract.